Commonwealth v. Quincy Demond Powell ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Annunziata and Senior Judge Cole
COMMONWEALTH OF VIRGINIA
v. Record No. 1613-95-2 MEMORANDUM OPINION * BY
JUDGE JERE M. H. WILLIS, JR.
QUINCY DEMOND POWELL DECEMBER 29, 1995
FROM THE CIRCUIT COURT OF HALIFAX COUNTY
William L. Wellons, Judge
(James S. Gilmore, III, Attorney General;
Kathleen B. Martin, Assistant Attorney
General, on brief), for appellant. Appellant
submitting on brief.
(Brandon M. Gladstone, Assistant Public
Defender; Office of the Public Defender, on
brief), for appellee. Appellee submitting on
brief.
Prior to trial on a charge of possessing cocaine, Quincy
Demond Powell moved to suppress the cocaine found on his person
on the ground that the discovery derived from a pretextual stop
and pat-down for weapons. Finding that the stop was pretextual,
that the officers lacked reasonable suspicion to detain Powell or
probable cause to arrest him, and that the seizure of suspected
cocaine from Powell's person violated his Fourth Amendment
rights, the trial court granted Powell's motion to suppress.
The Commonwealth contends on appeal that the officers had
probable cause to arrest Powell and thus, the stop was not
pretextual. We find no error and affirm the judgment of the
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
trial court.
South Boston Code § 12-2(a) provides, in pertinent part:
No person shall . . . obstruct passage through or upon
any public street, alley, bridge, parking lot, park or
other public place.
On January 13, 1995, a drug task force team, composed of
Officer Binner, Lieutenant Loftis, Investigator Stovall, and
Officer Pulliam, was investigating "open air" drug deals in South
Boston. The officers saw four people, Powell, another man, and
two women, standing on the sidewalk in front of 1908 College
Street. Two lawn chairs were on the sidewalk. The officers
stopped to investigate. As they exited the car, Powell and the
other man ran.
Officer Binner pursued and caught Powell and patted him down
for weapons. He found none, but felt in Powell's coat pocket a
container that he suspected contained drugs. Asked whether he
had cocaine in his pocket, Powell did not reply. Officer Binner
then reached in Powell's pocket and removed a "plastic
prescription medicine bottle," which, being opened, was found to
contain eighteen rocks of crack cocaine.
Officer Binner testified that he pursued Powell and patted
him down for weapons because Lieutenant Loftis had informed him
that Powell was known to carry a gun. However, Binner admitted
that at the preliminary hearing he had testified that he patted
Powell down for weapons because he had received an anonymous
phone call warning him to be careful because certain people in
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the College Street area carried weapons.
Asked whether upon his approach he saw anything improper
about the gathering on the sidewalk, Officer Binner testified,
"[t]he fact that they were obstructing anyone who wished to walk
down the sidewalk."
Cheryl Pamplin testified that she lived at 1908 College
Street and had been sitting in a lawn chair on the sidewalk with
her friend, Nomolika Johnson, when Powell and the other man
stopped by. She testified that no pedestrians, other than the
four in her group, were in the vicinity and that no person's
passage was impeded by the chairs or the persons standing there
talking. She testified that none of the officers questioned her
about obstructing the sidewalk. The officers issued no citation
for violation of the ordinance.
The trial court ruled:
[T]his Court finds that the justification for
apprehending Mr. Powell was pretextual, that Officer
Binner lacked reasonable suspicion to stop and probable
cause to arrest the defendant, and that the alleged
cocaine seized from his person violated Mr. Powell's
constitutional rights as alleged in his motion to
suppress.
The Commonwealth contends on brief that the officers had
probable cause to arrest Powell for violation of the South Boston
ordinance and that this justified Powell's seizure and search.
At trial, the Commonwealth's Attorney also argued that Officer
Binner had information supporting a reasonable suspicion that
Powell was carrying a concealed weapon, justifying Binner in
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seizing Powell temporarily for investigation and conducting a
protective frisk for weapons. The record supports neither
contention.
An investigative stop is pretextual unless "a reasonable
officer would have made the seizure in the absence of
illegitimate motivation." Limonja v. Commonwealth, 8 Va. App.
532, 538, 383 S.E.2d 476, 480 (1989) (en banc), cert. denied, 495
U.S. 905 (1990) (citing United States v. Smith, 799 F.2d 704, 708
(11th Cir. 1986)).
On appeal, we view the evidence in the light most favorable
to the party prevailing below and grant all reasonable inferences
fairly deducible from that evidence. Commonwealth v. Grimstead,
12 Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991). We give
deference to a trial court's findings of fact. See Shavin v.
Commonwealth, 17 Va. App. 256, 264, 437 S.E.2d 411, 417 (1993).
Powell did not obstruct the sidewalk merely by standing on
it. He had not put the chairs on it, nor was he sitting in a
chair. No other pedestrians were in the vicinity. No person's
passage was impeded. This scenario was insufficient to provide
probable cause to suspect violation of the South Boston
ordinance. The officers' conduct corroborates this. No officer
questioned any of the group about obstructing the sidewalk. No
charges to that effect were lodged.
Officer Binner gave conflicting accounts concerning the
information upon which he based his suspicion that Powell was
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armed. Accepting everything that he said, his information
derived from two sources. Lieutenant Loftis told him that Powell
"is known to carry a firearm." An undisclosed informant had told
him over the telephone, "just to . . . be careful in that area,
that certain subjects out in the area carry weapons." The second
item of information did not relate specifically to Powell. The
first item was mere rumor, setting forth no reported observation,
and containing no evidence of reliability sufficient to give rise
to reasonable suspicion justifying an investigative seizure.
The record supports the trial court's finding that the
officers' purpose in stopping Powell, and in conducting a
pat-down of his person was not to investigate an obstruction of
the sidewalk, but rather to search for illegal drugs.
Affirmed.
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